Karnataka High Court
Devendra vs Rama S/O Laxman Naik on 6 July, 2012
Author: K.Bhakthavatsala
Bench: K. Bhakthavatsala
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 6th DAY OF JULY, 2012
BEFORE
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
REGULAR SECOND APPEAL NO.97/2008
BETWEEN:
Devendra, S/o Thammanna Naik,
Age 48 years, occ: agriculture
R/o Gudihittalu, Shirali-I
Bhatkal Tq. Uttara Kannada Dist. 581 320
... Appellant
(By Sri. Sachin S. Magadum, Adv. for Sri. V.S. Shastri.)
AND:
1. Rama, S/o Laxman Naik.
Age 72 years, occ: agriculture
r/o Shirali-I, Bhatkal tq.
Uttara Kannada dist. 581 320.
2. Manjappa, s/o Annappa Naik,
Age 67 years, occ: Agril,
R/o Shirali-I Bhatkal tq.
Uttara Kannada dist. 581 320.
3. Krishna, s/o Laxman Naik
Age 64 years, occ: agril,
R/o Shirali-I Bhatkal tq.
Uttara Kannada Dist. 581 320.
... Respondents
(R1 & R3 sd. Appeal abated against R2 v/c/o dtd 30/05/2012)
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This RSA is filed under Section 100 of CPC against the
judgment and decree dated 06/10/2007 passed in
R.A.No.390/2001 on the file of the Civil Judge (Sr.Dn)
Honnavar allowing the appeal and setting aside the judgment
and decree dated 10.7.2001 passed in O.S.No.14/1998 on
the file of the Civil Judge(Jr.Dn) Bhatkal.
This RSA coming on for admission this day, the Court
delivered the following:
JUDGMENT
In spite of service of notice, there is no representation for the respondents.
2. This is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure challenging the judgment and decree made in Regular Appeal No.390/2001 on the file of the Senior Civil Judge at Honnavar, allowing the appeal filed by the defendant and setting aside the judgment and decree of the trial Court made in O.S.No.14/1998 on the file of the Civil Judge(Junior Division) Bhatkal.
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3. Learned counsel for the appellant submits that the first appellate Court erred in setting aside the judgment and decree of the trial Court made in O.S.No.14/1998.
4. The case of the appellant/plaintiff is that he is the owner of 14 guntas of land in Sy.No.510/1 situate at Shirali-I village, Bhatkal taluk and he is in possession and enjoyment of the same. On 23/01/1998, the defendants/neighbours who have no right, title over the suit schedule property, trespassed into the property and obstructed. Therefore, a suit came to be filed for permanent injunction against the defendants.
5. The case of the defendants is that they are the owners of 9 guntas of land in Sy.No.510/2 situate at Shirali-I village, Bhatkal and on 08/02/1998, the plaintiff in O.S.No.14/1998 tried to encroach upon suit schedule property to the extent of 9 feet and threatened to construct a compound wall and hence they filed a suit in O.S.No.17/1998 for permanent injunction.
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6. After pleadings were completed, the trial Court framed necessary issues. In support of the case of the plaintiff in O.S.No.14/1998, the plaintiff got himself examined as PW-1 besides examining one Anantha Sannahudaga Naik as PW-2 and got marked Exs.P-1 to P-4. Plaintiff No.1 in O.S.No.17/1998 got himself examined as PW-1 and got marked Exs.P-1 to P-6. Present appellant/plaintiff has no right over the property measuring 9 guntas in Sy.No.510/2. The trial Court for the reasons stated in its judgment dated 10/07/2011 decreed the suit in O.S.No.14/1998 while dismissing the suit in O.S.No.17/1998. As against the common judgment passed in the above said suits, respondents herein filed two appeals namely R.A. Nos.390/2001 and 391/2001. The first appellate Court, after hearing arguments and perusing the trial Court's record, came to a conclusion that the trial Court erred in decreeing the suit in O.S.No.14/1998 and set aside the judgment and decree passed in O.S.No.14/1998. The first appellate Court came to the conclusion that the judgment and decree made 5 in O.S.No.17/1998 do not call for interference and dismissed the appeal. As against the judgment and decree made in R.A.391/2001, the present appeal has been filed.
7. It is useful to refer to para No.37 of the impugned judgment of the first Appellate Court. In O.S.No.14/1998, the plaintiff has got marked a sketch (Ex.P-2) of Sy.No.510/1 and 510/2 of ADLR Kumta. It was set aside by ADLR sub division, Kumta on 23/01/1998. According to sketch at Ex.P- 2 there was encroachment on land of 3 annas of the plaintiff in O.S.No.14/1998 by the defendants. Ex.P-2 was the basis for the trial Court to decree the suit, but in view of the order passed by DDLR, Sub-Division, Dharwad, dated 27/03/1999( vide Ex.P-5), the very order and sketch at Ex.P-2 prepared by ADLR Kumta came to be set aside. As per sketch Ex.P-6(O.S.17/1998) prepared by DDLR Division Dharwad dated 23/12/1997, during the pendency of both the suits, the competent appellate Court namely Survey Settlement came to the conclusion that the owners of the land in Sy.No.510/1 encroached upon Sy.No.510/2 belonging 6 to the defendants who are plaintiff in O.S.No.17/1998 to an extent of 8 annas as shown in letters "ABF" but none of the parties did not produce records to show that the order of the DDLR, Division Dharwad was challenged. Since the order of DDLR was in force, the first appellate Court came to the conclusion that the judgment and decree of the trial Court made in O.S.No.14/1998 was erroneous and therefore allowed the appeal in R.A.No.390/2001 and set aside the judgment and decree of the trial Court made in O.S.No.14/1998.
8. In my view, no substantial question law arises for consideration in this appeal. There is no merit in the appeal.
In the result, the appeal fails and the same is hereby dismissed at the stage of admission itself.
Sd/-
JUDGE kmv